Last week’s US Government Accountability Office report on
patent infringement litigation may also be a case of the
dog that did not bark. The report, which was required under the
America Invents Act, makes a thorough review of the
consequences of patent litigation by patent trolls (it prefers
the term PME).
It then makes just one recommendation: that the USPTO
consider examining trends in patent infringement litigation and
consider linking this information to its own examination data
"to improve patent quality and examination".
That’s not a lot to ask really, and indeed USPTO
Acting Director Teresa Stanek Rea, in her response to the
report, undertakes to do so.
Improving patent quality is what numerous reports over the
past decade have recommended, and what organisations such as
AIPLA, and many patent owners, have urged – so you do
wonder what was the point of the GAO’s latest
contribution to the debate.
But perhaps the report is more noteworthy for what it did
not say. It did not recommend fundamental changes to
patentability, a cut in the patent term, shifting the costs of
patent litigation or any of the other more eccentric
suggestions that have been circulated on Capitol Hill and
beyond in recent months. As AIPLA Executive Director Todd
Dickinson said to me this week: "This report will give members
of Congress a more sober view of the current state of
That doesn’t mean nothing will be done. As
Dickinson says: "We prefer the courts be given time to use the
new tools under the AIA. We are also working with Congress and
the Administration to find surgical approaches to the troll
behaviour problem." There are signs that judges may play a more activist
role, and that state officials – such as Minnesota’s attorney general
– will also take action where they can to curb
The GAO report will be taken seriously at the highest levels
of government, as an objective and thorough analysis of the
problems and what can be done about them. That suggests any
further changes to patent protection in the US will be made
slowly and carefully.